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Supreme Court 13 December 2013

R v Sio

[2013] NSWSC 1872

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING AFTER TRIAL MERCIFUL VERDICT ON MURDER COUNT CONVICTION OF ARMED ROBBERY NO GENUINE REMORSE

Citation: R v Sio [2013] NSWSC 1872
Court: Supreme Court of New South Wales
Date: 13 December 2013
Judge: Adamson J

Background

The offender, Daniel Sio, was charged with murder and armed robbery with wounding arising from a violent robbery at a brothel in Clyde on 31 October 2012. The victim, the brothel's receptionist, died from a stab wound inflicted by a co-offender, Mr Filihia, who had entered the premises while Sio waited outside in a car. Filihia pleaded guilty to both murder and armed robbery.

Sio pleaded not guilty to both charges. The jury acquitted him of murder but convicted him of armed robbery with wounding. Adamson J found that Sio had organised the robbery, recruited Filihia to carry it out, supplied him with the knife used to kill the victim, and provided detailed knowledge of the premises obtained from a contact who worked there.

The sentencing proceeded on the basis that Sio was not responsible for the victim's death, consistent with the jury's acquittal on the murder count. The key question was how to sentence Sio for the armed robbery with wounding, taking into account his role, his personal circumstances, and the need for parity with his co-offender's sentence.

  • Whether the jury's merciful acquittal on the murder count precluded sentencing on the basis of responsibility for the victim's death
  • How parity principles applied when sentencing Sio alongside Filihia, who was convicted of murder
  • Whether Sio's formal admissions at trial warranted a sentencing discount
  • Whether special circumstances existed justifying a variation of the standard ratio between the non-parole period and the total sentence
  • The weight to be given to Sio's evidence at the sentence hearing, given the court's findings about his credibility

Decision

Adamson J found that the jury's acquittal on murder was a merciful verdict, consistent with the High Court's observations in Phillips v The Queen about a jury's innate sense of fairness. As a direct consequence, Sio could not be sentenced on the basis that he caused or was responsible for the victim's death. Sentencing proceeded on the armed robbery with wounding count alone.

The court made detailed factual findings about Sio's role, drawing on CCTV footage, fingerprint evidence, witness testimony, and the plans of the brothel that Sio had drawn at a contact's apartment. Adamson J rejected Sio's evidence that he was merely a driver and had no prior knowledge of the knife. The court found that Sio had conceived the robbery, supplied the weapon, briefed Filihia on the premises, and provided him with clothing to wear during the offence. These were the acts of an organiser rather than a peripheral participant.

Sio's formal admissions at trial, acknowledging that Filihia had killed the victim during the robbery, were found to have had no material effect on the length of the trial. Their substance was already apparent from the CCTV evidence tendered by the Crown, so no sentencing discount was warranted on that basis. The court also found no genuine remorse.

The submission that special circumstances existed, based on Sio's youth and his first time in custody, was rejected. Adamson J found that the objective seriousness of the offence and the need to protect the public meant the non-parole period needed to be of sufficient length, and no proper basis existed to disturb the standard ratio.

Orders Made

  • Sio was sentenced to 10 years' imprisonment for armed robbery with wounding, commencing 24 April 2013, with a non-parole period of 7 years and 6 months.
  • Earliest eligible parole date: 24 October 2020.

Key Takeaways

  • A jury's acquittal on a murder charge, described as a "merciful verdict," operates as a firm constraint on sentencing: the offender cannot be sentenced on the basis of responsibility for the death, even where a co-offender was convicted of that murder.
  • Organising an armed robbery, recruiting the person who carries it out, supplying the weapon, and briefing that person on the target premises constitutes a serious form of participation, even where the organiser does not enter the premises during the offence.
  • Formal admissions made at trial will not attract a sentencing discount if their substance was already established by other evidence, such as CCTV footage, and they did not materially shorten proceedings.
  • Under parity principles, a court sentencing co-offenders on different counts must pay close attention to the differing nature of each conviction, not merely the label of the offence, when calibrating sentence length.
  • A bare assertion of youth and first-time custody does not automatically establish special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999; the court must be satisfied those factors genuinely warrant departing from the standard sentencing ratio.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97, 98 (armed robbery provisions)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 26 (special circumstances)

Cases
- Phillips v The Queen [2006] HCA 4; 225 CLR 303 (merciful verdicts)
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120 (sentencing principles)
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383 (sentencing not to take into account uncharged conduct amounting to a more serious offence)
- McLaren v R [2012] NSWCCA 284
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (sentencing for armed robbery)